Super PACs: Worse to Come

You’re nothing in Presidential politics this year without a Super PAC. As most people know by now, Super PACs are fund-raising vehicles that support a candidate but are nominally independent of that candidate’s official campaign. Individuals can only give twenty-five hundred dollars to a candidate in a primary—and corporations cannot give anything at all—but both individuals and corporations can give as much as they please to Super PACs. Thanks to absence of those limits, in the South Carolina Republican primary, Super PACs spent about twice as much as the candidates themselves.

So far, it seems, the influence of Super PACs has been immense. Super PACs seem to deserve much of the credit for the fall and rise of Newt Gingrich’s Presidential campaign. When Gingrich took the lead in the Iowa polls, Mitt Romney’s Super PAC, Restore Our Future, funded a torrent of negative ads and brought down Gingrich’s standing. Then Sheldon Adelson, a Las Vegas billionaire, gave five million dollars to Gingrich’s own Super PAC, Winning the Future, before the South Carolina primary; that cash funded the Gingrich revival. (Just in time for the Florida primary, the Adelson family put five million dollars more behind Gingrich.)

This strange legal superstructure for our campaigns has come about largely because of Supreme Court decisions, especially the Citizens United case, from 2010. And though many people profess horror at the way money is dominating the campaign, it seems clear that, based on the way the Court is heading, we’ll soon look back on the campaign of 2012 and say those were the good old days.

To explain why, it helps to look back at a Supreme Court decision that used to be even more important than Citizens United. In 1974, in a case called Buckley v. Valeo, the Court upheld most of the post-Watergate elections reforms. (In Buckley, the nine Justices produced six different opinions, and they are famously long and incomprehensible, even by Supreme Court standards.) In the core holding of Buckley, the Justices created an important distinction. They said that Congress could not regulate campaign expenditures—that is, how campaigns spend their money. (It’s because of Buckley, by the way, that rich candidates can spend as much of their own money as they want—because you can’t limit anyone’s expenditures. Thus, Michael Bloomberg.) However, the Court also said that Congress could regulate campaign contributions, mostly by setting limits by how much individuals could give to a candidate. (Corporations have been prohibited from giving directly to federal candidates since the Tillman Act of 1907.)

That distinction between expenditures and contributions appears to be breaking down. The Court in Citizens United said that campaign-finance rules could have only one purpose: to eliminate corruption. Any other objective—like levelling the playing field among candidates—was not permissible. In a case last year, the same five Justices in the majority in Citizens United struck down an Arizona law that offered public subsidies to candidates who agreed to limit their own spending and to participate in debates. Speaking for the Court in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, Chief Justice John G. Roberts, Jr., wrote for the majority, “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.” Roberts added,

It is not legitimate for the government to attempt to equalize electoral opportunities in this manner. And such basic intrusion by the government into the debate over who should govern goes to the heart of First Amendment values.

In short, the Court appears to be engaging in a wholesale deregulation of the campaign-finance system. The holding of Citizens United was that corporations could give to Super PACs. (Individuals, like the Adelsons, could put money in Super PACs even before Citizens United.) But the logic of the recent Roberts Court decisions on campaign finance suggests that there soon may be no more need for super PACs. As long as the law requires disclosure of contributions, it’s hard to see the logic of prohibiting direct and unlimited contributions to campaigns—by individuals and corporations alike. (Only Clarence Thomas believes that disclosure requirements violate the First Amendment.) So, in the future, the Sheldon Adelsons of the world, and their companies, could simply give as much as they wanted directly to candidates. There could be some greater integrity in such a system, in that the convenient fiction of non-coordinated campaigns would disappear. Candidates would, in theory, be accountable to the public for all the spending on their behalf; but their obligations to their donors might be all the greater.

Through most of American history, there were no limits on campaign contributions. Stewart Mott, an eccentric heir to the General Motors fortune, gave hundreds of thousands of dollars to the Eugene McCarthy and George McGovern campaigns in 1968 and 1972. Corporations funded Theodore Roosevelt’s campaigns for President, though he later signed the law that ended their right to do so. Henry Clay Frick, the steel baron, supposedly said of T.R., “We bought the son of a bitch and then he didn’t stay bought.”

It is also true that most attempts to limit the money in politics have failed to eliminate its influence. But some will always keep trying—because, the Supreme Court notwithstanding, most politicians who have been bought tend to stay that way.

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